Said v Abdulsheikh & 2 others
The bottom line
#The Court of Appeal refused a Mombasa property owner's request to pause his eviction because he hid key facts from the court.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The appeal is arguable; a single arguable point suffices and an arguable appeal need not necessarily succeed.
The court applied the Kinyanjui v Ketter principles, noting grounds including that the sale agreement was neither dated nor attested and that no evidence of payment of the purchase price was presented. It held an arguable appeal is one worthy of the court's consideration, not one that must succeed.
Whether the appeal would be rendered nugatory absent stay
The nugatory test was not satisfied; the applicant failed to disclose material facts and faced no demonstrated imminent eviction.
The applicant concealed a pending similar application before the ELC and the status quo order made on June 16, 2022. Non-disclosure of material facts disentitles an applicant to discretionary relief. Further, forum shopping and the existing protective order meant the court would not act in vain.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is declined.
- Failure to disclose material facts when seeking discretionary relief disentitles the applicant to that relief.
- A single arguable point suffices to establish that an appeal is arguable.
Court orders
#- 1.The application is dismissed with costs to the 1st and 2nd respondents
- On appeal from
- Environment & Land Court at Mombasa
- ELC Case No. 347 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Abdulsheikh & 2 others", Case Analysis (2022). Civil Application E042 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1379/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.